Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332

Background

Plaintiff Islam Shahin sued Masa Custom Homes, LLC, Mohamed Shamali, and Nishad Kolothody for construction defects and related torts; Masa asserted counterclaims. A bench trial occurred in August 2015 before Judge Phyllis Lister Brown.
At the close of plaintiff's case, Judge Brown granted a directed verdict in favor of Kolothody (dismissing claims against him) but denied the motion as to Shamali; she did not issue a final written judgment at that time.
After trial, the court coordinator emailed counsel a summary of rulings and damages; parties submitted competing proposed final judgments (plaintiff’s proposed judgment awarded treble DTPA damages and named all defendants jointly liable).
Judge Brown agreed at a post-trial hearing to review pending matters (including reconsideration of Kolothody’s dismissal and attorney-fee/enhanced-damages issues) but died before entering a final judgment or filing findings.
Six days after her death, Visiting Judge Eric Moyé signed plaintiff’s proposed final judgment (imposing individual liability on both Shamali and Kolothody and awarding treble damages and attorney’s fees); he also signed findings of fact and conclusions of law largely matching plaintiff’s proposals.
Defendants appealed; the appellate court sua sponte questioned jurisdiction because Judge Moyé had not presided over the bench trial and Judge Brown had not rendered a final judgment before her death.

Issues

Issue	Shahin's Argument	Appellants' Argument	Held
Whether a judge who did not hear the bench trial may render final judgment by reviewing the record	Judge Moyé could sign the judgment because he reviewed the record and transcripts and Judge Brown left rulings in the record/email	A judge who did not hear the evidence cannot render judgment after a bench trial; Judge Brown had not rendered a final judgment before she died	A judge who did not hear the evidence in a bench trial lacks authority to render final judgment; Judge Moyé’s judgment is void
Whether Rule 18 or Tex. Civ. Prac. & Rem. Code § 30.002(b) authorized Judge Moyé to sign findings or judgment	Section 30.002(b) and Rule 18 permit a successor/visiting judge to approve findings or continue court business, so he was authorized	Those provisions permit approval or filing of statements or continuation of court business but do not authorize rendering a new final judgment when the successor did not hear the evidence	§ 30.002(b) and Rule 18 do not authorize a judge who did not hear the bench trial to render judgment; they only permit certain post-death filings and ministerial actions
Whether the appellate court must address this jurisdictional defect sua sponte or it can be waived	Plaintiff did not raise jurisdictional bar; judgment should be reviewed on merits	Appellants argued the defect is jurisdictional and cannot be waived; a void judgment removes appellate jurisdiction	Court treated the defect as jurisdictional under Chan Pak and other authority; it must decide validity of underlying judgment before addressing merits
Whether appellate court may render judgment for Kolothody based on Judge Brown’s earlier interlocutory ruling	Plaintiff contended the court could enter judgment under Rule 43.3 because Judge Brown effectively ruled for Kolothody at trial	Appellants argued Brown’s ruling was interlocutory and not a final judgment; absent statutory authority, appellate court lacks jurisdiction to review interlocutory matters	Court held Brown’s dismissal of Kolothody was interlocutory; appellate court lacked jurisdiction to enter final interlocutory judgment and declined to render judgment for Kolothody

Key Cases Cited

Ad Villarai, LLC v. Chan Pak, 519 S.W.3d 132 (Tex. 2017) (rule 18 does not authorize successor judge to make findings when prior judge did not die, resign, or become unable; void acts deprive court of power)
Porter v. Vick, 888 S.W.2d 789 (Tex. 1994) (per curiam) (limits on successor judge making factual credibility determinations where judge did not hear evidence)
W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783 (Tex. App.–Houston [1st Dist.] 1990, no writ) (trial judge must render judgment before death; visiting judge cannot substitute where evidence was not heard by him)
Gathe v. Gathe, 376 S.W.3d 308 (Tex. App.–Houston [14th Dist.] 2012, no pet.) (successor judge lacked authority to render judgment after bench trial he did not hear)
Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719 (Tex. App.–Houston [1st Dist.] 2010, pet. denied) (visiting judge may sign judgment consistent with jury verdict though he did not preside at trial)
Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621 (Tex. 2012) (appellate court lacks jurisdiction to address merits of appeal from a void judgment)
Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex. 2000) (appellate jurisdiction over interlocutory orders is limited)
Fortenberry v. Fortenberry, 545 S.W.2d 40 (Tex. App.–Waco 1976, no writ) (visiting judge signed judgment consistent with trial judge’s written decision; court declines to rely on it as precedent for allowing successor to render new judgment)
In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (limitations of reviewing a cold record versus observing witnesses in person)

Outcome: Judgment signed by visiting judge was void; appellate court set aside that judgment, remanded for further proceedings, and dismissed the appeal.